Marijuana-as-medicine issue raised in convicted pot grower's appeal

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One week after Gov. Tom Corbett's turnabout on the medicinal use of marijuana, the issue has surfaced in an appeal on a criminal conviction for marijuana possession in Fayette County.

Charles Alan Smith, 53, of Smithfield was sentenced on Monday to five to 10 years in prison for 377 marijuana plants and 20 pounds of processed pot found in his former home in Uniontown in 2012.

Fayette County Judge John F. Wagner said Smith can remain free on $100,000 bond while he appeals Pennsylvania's marijuana law.

Corbett, who is running for a second term, announced last week he would support a very limited bill to give qualifying children access to cannabidiol, a marijuana extract.

“Even Gov. Corbett has acknowledged the medical efficacy of some strains of marijuana and has called for a pilot program to provide marijuana-oil extracts to children with seizure disorder,” Smith's appeal asserts.

“We're talking about a 53-year-old Navy veteran, a first-time offender, caring for a handicapped daughter, looking at serving a five-year stretch in prison here because of the definition of marijuana in Pennsylvania's Substances Act as it is written today,” Smith's attorney, Patrick K. Nightingale of Pittsburgh, said.

His appeal challenging the constitutionality of defining marijuana as a Schedule 1 controlled substance under the Crimes Code will first go before Wagner, said Nightingale, the executive director of the Pittsburgh chapter of the National Organization for the Reform of Marijuana Laws.

Fayette County District Attorney Jack Heneks Jr. predicted Smith's conviction will be upheld.

“Our evidence shows that Smith was not using the marijuana for medicinal purposes, and it was illegal at the time of his possession,” Heneks said.

Wagner found Smith guilty of manufacturing marijuana in a nonjury trial.

City code enforcement officer Mark Pasquale found the plants at Smith's former home on April 26, 2012, while investigating possible building code violations. Court records indicate Smith rejected a plea offer calling for a sentence of five to 10 years in prison.

Nightingale's appeal notes 21 states and the District of Columbia have medicinal marijuana programs permitting qualifying patients to legally obtain and use marijuana. He noted medicinal marijuana bills are pending in Pennsylvania.

Wesley Oliver, an associate professor and director of the criminal justice program at Duquesne University School of Law, said Nightingale's argument is a smokescreen that will not prevail.

“Look at the amounts that we're talking about — 300-plus plants and 20 pounds. That hardly falls within medically prescribed amounts. ... He certainly wasn't treating glaucoma or anything like that possessing that amount,” Oliver said.

Sen. Daylin Leach, D-Montgomery County, introduced Senate Bill 528 in April 2013 to legalize buying and using marijuana for adults for any purpose. In a letter seeking cosponsors, Leach wrote:

“According to the Office of National Drug Control Policy, in 2006, an average year, 24,685 marijuana arrests were made in Pennsylvania, at a cost of $325.36 million. Each year we not only spend a similar amount, we leave several hundred million dollars on the table in taxes that we do not collect because marijuana is illegal, rather than regulated and taxed. Aside from the moral issues involved, we simply can no longer afford the financial costs of prohibition.”

His bill has not advanced from the Senate Law and Justice Committee.

At the same time, Leach introduced a proposal to legalize medical marijuana. It has not advanced from the Senate Public Health and Welfare Committee. Leach noted marijuana has been legalized elsewhere to counter the effects of chemotherapy, control pain and relieve glaucoma symptoms.

Leach and Republican Sen. Mike Folmer of Lancaster co-sponsored a bill that would allow patients, with a recommendation from their doctor, to purchase and use a strain of marijuana known as “Charlotte's Web,” which has low THC levels and is ingested rather than smoked. The marijuana would be grown and sold through licensed “care centers.” Senate Bill 1182 was referred to the Law and Justice Committee.

Rep. Mark Cohen, D-Philadelphia, introduced a plan in April 2013 to legalize medicinal marijuana for patients with a recommendation from a medical doctor. Patients could purchase taxable marijuana from “compassion centers” after they register and pay an annual $50 fee. The bill has not moved from the House Health Committee.

In March, Rep. Jake Wheatley, D-Hill District, introduced a bill to put a nonbinding referendum on the next election ballot to ask voters whether they favor legalizing marijuana. House Bill 2137 is before the Human Services Committee.

“There is rising pressure in every state toward legalization of prescribed amounts because of what has transpired recently, particularly in Colorado and Washington,” Oliver said.

But “legalizing any form of marijuana has been considered a taboo in Pennsylvania,” he said. “There could be a crack in the door toward some sort of legalization. ... We'll just have to wait and see.”

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